VANMALIBEN TRIBHUVANDAS PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The order passed by and on behalf of the State Government (respondent No. 1 herein) on 26th May 1994 under sec. 34 of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief) is under challenge in this petition under art. 226 of the Constitution of India. By its impugned order, respondent No.1 set aside the order passed by the Competent Authority at Surat (respondent No.2 herein) on 26th September 1989 (communicated some time in October 1989) under sec. 8(4) thereof. By his aforesaid order, respondent No.2 ordered to file the declaration filed by and on behalf of the petitioners under sec. 6(1) of the Act on the ground that the holding of neither of them was in excess of the ceiling limit.

(2.) The facts giving rise to this petition move in a narrow compass. The petitioners filed their separate declarations in the prescribed form under sec. 6(1) of the Act. Both of them showed their one-half share each in one parcel of land bearing survey No. 126(part) admeasuring 4654 square meters situated at Katargam within the urban agglomeration of Surat (the disputed land for convenience). Those forms were processed by respondent No. 2. After observing necessary formalities under sec. 8 of the Act, by his order passed on 26th September 1989 under sub-section (4) thereof, respondent No. 2 came to the conclusion that the holding of neither petitioner was in excess of the ceiling limit. He therefore ordered closure of the proceeding. Its copy is at Annexure F to this petition. It appears to have come to the notice of the concerned officer of respondent No. 1. He appears to have found it not according to law. Its suo motu revision under sec. 34 of the Act was therefore contemplated. A show-cause notice thereupon came to be issued on 17th June 1992 calling upon petitioner No.1 to show cause why the order at Annexure F to this petition should not be revised. Its copy is at Annexure H to this petition. After hearing the parties, by the order passed by and on behalf of respondent No.1 on 26th May 1994, the order at Annexure F to this petition came to be set aside and the holding of petitioner No. 1 came to be declared in excess of the ceiling limit by 3154 square meters. Its copy is at Annexure I to this petition. It appears that the petitioners thereupon moved the State Government for its review. By one communication of 2nd December 1994, the petitioners were informed that no review thereof was possible. Its copy is at Annexure J to this petition. The aggrieved petitioners have thereupon approached this Court by means of this petition under art. 226 of the Constitution of India for questioning the correctness of the order at Annexure I to this petition.

(3.) As rightly submitted by learned Advocate Kum. Shah for the petitioners, a son has a right by birth in the ancestral property in the hands of his father according to well-settled principles of Hindu law. It transpires from the impugned order at Annexure I to this petition that the property in the name of petitioner No.1 was received by him in partition of the ancestral properties amongst co-parceners. Even if the name of petitioner No.2 was not shown in the revenue records with respect thereto, the property in the hands of petitioner No.1 was an ancestral property. According to well-settled principles of Hindu law, as a son of petitioner No.1, petitioner No.2 had a right therein from the date of his birth. It is not in dispute that petitioner No.2 was not a minor on the date of coming into force of the Act. In that case, as rightly submitted by Kum. Shah for the petitioners, petitioner No.1 would be entitled to claim two ceiling units under the Act. In the alternative, since both the petitioners have filed their separate declarations in the prescribed form under sec. 6(1) of the Act, each petitioner can be said to be having his one-half share in the disputed land. Since the impugned order at Annexure I to this petition has taken the disputed land to be of the exclusive ownership of petitioner No.1, that finding cannot be sustained.